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PUNCHING IN: More on Joint Employer, Overtime, Auto Organizing

Chris Opfer: With a new bill in the
House, a decision from the D.C. Circuit
coming soon, and a pending request for the Supreme Court
to weigh in, the joint employer question isn’t likely to go away anytime soon.
Now there’s word of another possible development: At least one management
advocate says he has already made the
case to the Labor Department to issue a new rule limiting the circumstances
under which affiliated businesses can be tagged as joint employers under
federal wage and hour law.

Roger King, the HR Policy Association
attorney who until
recently was the leading candidate for NLRB general
counsel, said the association recently asked DOL to consider a new rule.

“We wanted to make sure they were aware of it,” King told me
of the joint employer rule request. He added that the agency has many positions
to fill before it can take on that kind of regulatory heavy lifting.

A Labor Department spokesperson confirmed
that Secretary Alex Acosta met with HRPA, but didn’t say whether the specific
subject came up. Others plugged into the push to limit joint employer liability
said they’re not aware of DOL being asked specifically to update its existing
joint employer regulation. One veteran wage and hour lawyer said he’d be “shocked” if
not one had already made the request. It’s safe to also say that any movement
on a rule is probably a long way off.

The
regulatory route isn’t the perfect solution for the business community, but it
may be the best available one. The House bill is a long shot in the Senate, and
court battles over joint employment may not provide a definitive answer. On the
other hand – as the ongoing overtime drama makes clear – the rulemaking process
is an extended one that comes with its own set of obstacles. A rewrite of the
rule would be a big blow for labor unions and their allies, who will decry it
as another move to shortchange workers.

How should the Labor Department define
joint employment? Let us know at copfer@bna.com and bpenn@bna.com or on Twitter: @ChrisOpfer and @BenjaminPenn.

Ben Penn:
This is the first
full week for members of the public to
weigh in on the DOL’s plans to rewrite the Obama administration’s overtime rule.
The deadline to submit comments isn’t until late September, but is anyone ready
to file already? Months before the request for
information was formally published, Acosta signaled which direction he was leaning
for a new proposal (resetting the salary threshold for overtime exemption to
about $33k.) But the Labor Department
caught a few folks off guard with the RFI’s detailed questions on the duties test, which might require comment
drafters to go back to the drawing board. The request for duties feedback even
prompted some concern from the U.S. Chamber of Commerce, which said in a
statement that opening the door to such changes is unnecessary.

Should this ambiguous
part of the Fair Labor Standards Act’s rules governing overtime pay eligibility
be modified in the new notice of proposed rulemaking? The duties test requires
employees to perform a certain amount of managerial work to be exempt from the time-and-a-half
mandate. By doubling the salary threshold to $47,500, the Obama DOL intended to
significantly limit the number of situations where it mattered. Plus, in
announcing the rule, then-Labor Secretary Tom Perez was thus able to tell
employers: You told us not to mess with the duties test, and we listened.

Now that a
new administration is in charge, will the management bar be willing to give
duties changes fresh consideration? This question divided two former heads of the
Wage and Hour Division during the George W. Bush administration. Both now
represent employers for a living.

Alfred Robinson of Ogletree Deakins told me it “could complicate and
delay the rulemaking process if they try to start making more significant changes
in the duties test.”

“I hope they
don’t go down that path and I don’t think that’s the path they’re heading,”
Robinson said.

Paul DeCamp of Jackson Lewis had a different take. "Most of the litigation comes up because the exemption
standards on the duties are ambiguous and difficult to apply,” he said. Decamp said he’s glad to see that the DOL is
open to comments on this topic.

Elsewhere in
DOL this week, the Bureau of Labor
Statistics will release the monthly employment report Friday, and it’s likely
to show another solid job gain, according to our pals over at Bloomberg.
Acosta made his cable news interview debut last month to tout June’s job gains.
As appreciative as we were that he included Bloomberg TV as one of his two
media hits that day, I’m curious whether the secretary is ready to branch out a
bit this week.

CO: President
Trump repeatedly pledged to be a friend to the LGBT community on the campaign
trail. In the span of 24 hours last week, however, the administration made a
couple of moves that has plenty of folks questioning his sincerity. First,
Trump announced via tweet that he’s banning transgender soldiers from serving in the military. Later the same day,
the Justice Department said it would reverse course on its previous position that the existing ban
on sexual discrimination in the workplace includes sexual orientation and
gender identity discrimination.

That has some wondering whether Team Trump might follow up by scrapping
the executive order that explicitly prohibits LGBT discrimination by federal
contractors.

“Of course the series of blatantly
hostile moves against LGBT people within the past few days heightens concern
that the executive order will be part of this administration’s target practice
on our communities,” Hayley Gorenberg,
Lambda Legal’s deputy legal director, told me last week. “At a time when we
have built legal momentum, and despite strong public support for fairness in
the workplace, top federal government leaders seem bent on dragging us
backwards.”

Bloomberg Law’s Jay-Anne
Casuga recently explained to
me that the executive order’s value depends largely on whether the government
is willing to enforce it. The order doesn’t give workers a private right of
action to sue for discrimination. The Labor Department Office of Federal
Contract Compliance Programs has initiated
only one administrative complaint that stemmed from LGBT discrimination
allegations since 2015.

BP: The labor world will be fixated on Canton, Miss., Thursday and Friday when workers at a Nissan assembly plant vote on
whether to unionize with the United Auto Workers. An organizing victory at
the so-called Southern transplant would be massive for the UAW and would bring
hope to a labor movement that’s in dire need of a positive headline.

This
election is a much different animal than the representation election at a Volkswagen
plant in Tennessee in 2014, when the UAW suffered a narrow, dramatic loss. VW
remained neutral throughout that drive, which appeared to be a done deal in
favor of the union until a fierce band of GOP politicians and interest groups
swooped in to convince just barely enough employees to vote no on UAW. Nissan, by contrast, has brought in the big
dogs from Littler Mendelson to tell management’s side of the story, we are
told.

The anti-union
campaigners will have a new talking point at their disposal in the final days
leading up to the NLRB-supervised election. The DOL’s Office of
Labor-Management Standards announced last week that a former UAW vice president
was indicted on charges of dipping into the union’s training funds to line the
pockets of UAW officers and employees. The timing of this indictment the week
before the Nissan election is interesting.

UAW
President Dennis Williams told reporters earlier this month that his gut tells
him the UAW will win in Mississippi, but he also said his opinion can change on
a daily basis. The UAW has been trying to organize workers at that factory for
more than a decade. Petitioning for this election may be more of a symbolic
gesture to the pro-union Nissan workers than a legitimate opportunity to gain a
sorely needed win in the deep South. But hey, anything can happen.

CO: We’re punching out. Daily Labor Report subscribers can check in with us during the week for updates and more
coverage on the push for a joint employer rule. Jon Steingart is keeping an eye on a Victoria’s Secret case in California. Today is
the deadline for lingerie retail workers to submit a proposed settlement in a
dispute over whether they should be paid for shifts when they call in and are
told to stay home.

See you
back here next Monday morning.

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